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Conscience of a Conservative

In the fall of 2003, Jack L. Goldsmith was widely considered one of the brightest
stars in the conservative legal firmament. A 40-year-old law professor at the
University of Chicago, Goldsmith had established himself, with his friend and
fellow law professor John Yoo, as a leading proponent of the view that international
standards of human rights should not apply in cases before U.S. courts. In
recognition of their prominence, Goldsmith and Yoo had been anointed the “New
Sovereigntists” by the journal Foreign Affairs.

Goldsmith had been hired the year before as a legal adviser to the general
counsel of the Defense Department, William J. Haynes II. While at the Pentagon,
Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warning that prosecutors
from the International Criminal Court might indict American officials for their
actions in the war on terror. Goldsmith described this threat as “the
judicialization of international politics.” No one was surprised
when he was hired in October 2003 to head the Office of Legal Counsel, the
division of the Justice Department that advises the president on the limits
of executive power. Immediately, the job put him at the center of critical
debates within the Bush administration about its continuing response to 9/11 — debates
about coercive interrogation, secret surveillance and the detention and trial
of enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. Although he refused
to discuss his resignation at the time, he had led a small group of administration
lawyers in a behind-the-scenes revolt against what he considered the constitutional
excesses of the legal policies embraced by his White House superiors in the
war on terror. During his first weeks on the job, Goldsmith had discovered
that the Office of Legal Counsel had written two legal opinions — both
drafted by Goldsmith’s friend Yoo, who served as a deputy in the office — about
the authority of the executive branch to conduct coercive interrogations. Goldsmith
considered these opinions, now known as the “torture memos,” to
be tendentious, overly broad and legally flawed, and he fought to change them.
He also found himself challenging the White House on a variety of other issues,
ranging from surveillance to the trial of suspected terrorists. His efforts
succeeded in bringing the Bush administration somewhat closer to what Goldsmith
considered the rule of law — although at considerable cost to Goldsmith
himself. By the end of his tenure, he was worn out. “I was disgusted
with the whole process and fed up and exhausted,” he told me recently.

After leaving the Office of Legal Counsel, Goldsmith was uncertain about
what, if anything, he should say publicly about his resignation. His silence
came to be widely misinterpreted. After leaving the Justice Department, he
accepted a tenured professorship at Harvard Law School, where he currently
teaches. During his first weeks in Cambridge, in the fall of 2004, some of
his colleagues denounced him for what they mistakenly assumed was his role
in drafting the torture memos. One colleague, Elizabeth Bartholet, complained
to a Boston Globe reporter that the faculty was remiss in not investigating
any role Goldsmith might have played in “justifying torture.” “It
was a nightmare,” Goldsmith told me. “I didn’t
say anything to defend myself, except that I didn’t do the things I was
accused of.”

Now Goldsmith is speaking out. In a new book, “The Terror Presidency,” which
will be published later this month, and in a series of conversations I had
with him this summer, Goldsmith has recounted how, from his first weeks on
the job, he fought vigorously against an expansive view of executive power
championed by officials in the White House, including Alberto Gonzales, who
was then the White House counsel and who recently resigned as attorney general,
and David Addington, who was then Vice President Cheney’s legal adviser
and is now his chief of staff. Goldsmith says he is not speaking out for the
money; though he received a low six-figure advance for the book, he is, after
deducting some minor expenses, donating the advance and any profits to charity.
Nor is he speaking out because he disagrees with the basic goals of the Bush
administration in the war on terror. “I shared, and I still share,
a lot of their concerns about what we have to do to meet the terrorist threat,” he
told me. When I asked whether he thought Gonzales should have resigned and
whether Addington should follow, he demurred. “I was friends with
Gonzales and feel very sorry for him,” he said. “We
got along really well. I admired and respected Addington, even when I thought
his judgment was crazy. They thought they were doing the right thing.”

Goldsmith told me that he has decided to speak publicly about his battles
at the Justice Department because he hopes that “future presidents
and people inside the executive branch can learn from our mistakes.” In
his view, American presidents for the foreseeable future will, like George
W. Bush, face enormous pressure to be aggressive and pre-emptive in taking
measures to prevent another terrorist attack in the United States. At the same
time, Goldsmith notes, everywhere the president looks, critics — as well
as his own lawyers — are telling him that pre-emptive actions may violate
international law as well as U.S. criminal law. What, exactly, are the legal
limits of executive power in the post-9/11 world? How should administration
lawyers negotiate the conflict between the fear of attacks and the fear of
lawsuits?

In Goldsmith’s view, the Bush administration went about answering these
questions in the wrong way. Instead of reaching out to Congress and the courts
for support, which would have strengthened its legal hand, the administration
asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view
of executive power. As Goldsmith sees it, this strategy has backfired. “They
embraced this vision,” he says, “because they wanted
to leave the presidency stronger than when they assumed office, but the approach
they took achieved exactly the opposite effect. The central irony is that people
whose explicit goal was to expand presidential power have diminished it.”

I
have known Goldsmith since we were at law school together. In addition to being
intellectually curious and having good judgment, he always struck me as a pragmatic
rather than an ideological conservative. Born in 1962 in Memphis, Goldsmith
is the son of a former Miss Teenage Arkansas whose parents ran a celebrated
nightclub. Growing up, he had two stepfathers, one of whom he describes in
the book as “a
mob-connected Teamsters executive” who
was “Jimmy Hoffa’s right-hand man and for decades a leading
suspect in Hoffa’s disappearance.” His upbringing seems
to have contributed to his down-to-earth sensibility. After earning degrees
at Washington and Lee University and Oxford, he thrived at Yale Law School,
where he developed what he calls “an allergic reaction to Yale’s
left-wing jurisprudence and political correctness.” He later clerked
for Justice Anthony Kennedy on the Supreme Court and taught law at the Universities
of Virginia and Chicago. He is married, and he and his wife have two sons.

When Goldsmith was asked, four years ago, to head the Office of Legal Counsel
at the Justice Department, he jumped at the opportunity. Working for the office
is one of the most prestigious jobs in government: former heads and deputies
include the Supreme Court Justices William H. Rehnquist, Antonin Scalia and
Samuel A. Alito Jr. The Office of Legal Counsel interprets all laws that bear
on the powers of the executive branch. The opinions of the head of the office
are binding, except on the rare occasions when they are reversed by the attorney
general or the president.

In the post-9/11 era, the office has played a crucial role in providing legal
cover to jittery bureaucrats fearful that officials in the White House, Defense
and State Departments or the C.I.A. might be prosecuted for their actions in
the war on terror. The Justice Department, after all, is the branch of government
responsible for prosecutions, and its own prosecutors — as well as independent
counsels — would be hard pressed to prosecute someone who had relied
on the department’s own opinions in good faith. For this reason, the
office has two important powers: the power to put a brake on aggressive presidential
action by saying no and, conversely, the power to dispense what Goldsmith calls “free
get-out-of jail cards” by saying yes. Its opinions, he writes
in his book, are the equivalent of “an advance pardon” for
actions taken at the fuzzy edges of criminal laws.

In the Bush administration, however, the most important legal-policy decisions
in the war on terror before Goldsmith’s arrival were made not by the
Office of Legal Counsel but by a self-styled “war council.” This
group met periodically in Gonzales’s office at the White House or Haynes’s
office at the Pentagon. The members included Gonzales, Addington, Haynes and
Yoo. These men shared a belief that the biggest obstacle to a vigorous response
to the 9/11 attacks was the set of domestic and international laws that arose
in the 1970s to constrain the president’s powers in response to the excesses
of Watergate and the Vietnam War. (The Foreign Intelligence Surveillance Act
of 1978, for example, requires that executive officials get a warrant before
wiretapping suspected enemies in the United States.) The head of the Office
of Legal Counsel in the first years of the Bush administration, Jay Bybee,
had little experience with national-security issues, and he delegated responsibility
for that subject matter to Yoo, giving him the authority to draft opinions
that were binding on the entire executive branch.

Yoo was a “godsend” to
a White House nervous about war-crimes prosecutions, Goldsmith writes in his
book, because his opinions reassured the White House that no official who relied
on them could be prosecuted after the fact. But Yoo’s direct access to
Gonzales angered his boss, Attorney General John Ashcroft, according to Goldsmith.
(Neither Ashcroft nor Gonzales responded to requests for interviews for this
article.) Ashcroft, Goldsmith says, felt that Gonzales and the war council
were usurping legal-policy decisions that were properly entrusted to the attorney
general, such as the creation of military commissions, which Gonzales supported
and Ashcroft never liked.

The matter came to a head in the fall of 2003, when Bybee left the Office
of Legal Counsel and Gonzales suggested Yoo as a candidate to lead it. Ashcroft
rejected the suggestion. Yoo then recommended his friend Goldsmith to the White
House as a suitable alternative. Goldsmith interviewed with Ashcroft at the
Justice Department and with Gonzales and Addington at the White House. In his
interview with Addington and Gonzales, Goldsmith recalls talking about the
dangers of international law and the importance of military commissions. He
got the job.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that
he received a phone call from Gonzales: the White House needed to know as soon
as possible whether the Fourth Geneva Convention, which describes protections
that explicitly cover civilians in war zones like Iraq, also covered insurgents
and terrorists. After several days of study, Goldsmith agreed with lawyers
in several other federal agencies, who had concluded that the convention applied
to all Iraqi civilians, including terrorists and insurgents. In a meeting with
Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later,
Goldsmith drove from the Justice Department to the White House for a meeting
with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin
turning to him in the car and saying: “They’re going to
be really mad. They’re not going to understand our decision. They’ve
never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence
in the room — a large man with large glasses and an imposing salt-and-pepper
beard” who was “known throughout the bureaucracy
as the best-informed, savviest and most conservative lawyer in the administration,
someone who spoke for and acted with the full backing of the powerful vice
president, and someone who crushed bureaucratic opponents.” When
Goldsmith presented his analysis of the Geneva Conventions at the White House,
Addington, according to Goldsmith, became livid. “The president
has already decided that terrorists do not receive Geneva Convention protections,” Addington
replied angrily, according to Goldsmith. “You cannot question
his decision.” (Addington declined to comment on this and other
details concerning him in this article.)

Goldsmith then explained that he agreed with the president’s determination
that detainees from Al Qaeda and the Taliban weren’t protected under
the Third Geneva Convention, which concerns the treatment of prisoners of war,
but that different protections were at issue with the Fourth Geneva Convention,
which concerns civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith
told me that he has checked his recollections of this and other meetings with
at least one other participant or with someone to whom he described the meetings
soon after.)

Months later, when Goldsmith tried to question another presidential decision,
Addington expressed his views even more pointedly. “If you rule
that way,” Addington exclaimed in disgust, Goldsmith recalls, “the
blood of the hundred thousand people who die in the next attack will be on your hands.”

The
conflict over the Geneva Conventions was just the beginning. About six weeks
after he started work, Goldsmith became aware that there might be what he calls “potentially
problematic” opinions drafted
by the Office of Legal Counsel. These were the “torture memos,” one
of which was written in August 2002 and the other in March 2003. The August
opinion defined torture as pain “equivalent in intensity to the
pain accompanying serious physical injury, such as organ failure, impairment
of bodily function or even death.” Goldsmith concluded that this
opinion defined torture far too narrowly. He also had concerns about the March
2003 opinion, the contents of which remain classified but which dealt with
the military interrogation of aliens held outside the United States.

Goldsmith told me that he objected to what he calls the “extremely
broad and unnecessary analysis of the president’s commander in chief
power” in the memos. The August opinion, for example, boldly concluded
that “any effort by Congress to regulate the interrogation of
battlefield combatants would violate the Constitution’s sole vesting
of the Commander in Chief authority in the President.” Goldsmith
says he believed at the time, and still does, that “this extreme
conclusion” would call into question the constitutionality of
federal laws that limit interrogation, like the War Crimes Act of 1996, which
prohibits grave breaches of the Geneva Conventions, and the Uniform Code of
Military Justice, which prohibits cruelty and maltreatment. He also found the
tone of both opinions “tendentious” rather than cautious
and feared that they might be interpreted as an attempt to immunize government
officials for genuinely bad acts.

Yoo has acknowledged drafting the August 2002
memo, which he says was the basis for the interrogation of Abu Zubaydah, a
top Al Qaeda operative. Yoo also wrote and signed the March 2003 opinion. His
friendship with Goldsmith made it especially awkward for Goldsmith to criticize
the memos. “I was basically taking steps to fix the mistakes of a close friend,
who I knew would be mad about it,” Goldsmith told me. “We don’t
talk anymore, and that’s one of the many sad things about my time in
government.”

Photo

Jack L. Goldsmith, who currently teaches at Harvard Law School.Credit
Stefan Ruiz

In December 2003, Goldsmith decided that he had to withdraw the March opinion — that
is, he had to tell administration officials that they could no longer rely
on it. “But figuring out how to withdraw it was very tricky,” he
told me, “since withdrawal would frighten everyone who relied
on the opinions in a very sensitive area.” In the past, the Office
of Legal Counsel had occasionally changed its legal positions between presidential
administrations to reflect different legal philosophies, but Goldsmith could
find no precedent for the office withdrawing an opinion drafted earlier by
the same administration — especially on a matter of such importance.
Goldsmith concluded that he could immediately tell the Defense Department to
stop relying on the March opinion, since he was confident that it was not needed
to justify the 24 interrogation techniques the department was actually using,
including two called “Fear Up Harsh” and “Pride
and Ego Down,” which were designed to make subjects nervous without
crossing the line into coercion. But the withdrawal of the August opinion was
a much harder call. The August opinion provided the legal foundation for the
C.I.A.’s interrogation program, Goldsmith says, which he considered much
closer to the legal line. (He refused to discuss the details of the program.)

Goldsmith, however, says he didn’t have the time or resources to create
a replacement opinion immediately. In his initial months on the job, his attention
was focused on the more pressing matter of addressing legal issues surrounding
the terrorist-surveillance program. In April 2004, however, Goldsmith’s
priorities were reversed when the Abu Ghraib scandal broke. Then, in June of
that year, Yoo’s August 2002 opinion was leaked to the media. “After
the leak, there was a lot of pressure on me within the administration to stand
by the opinion,” Goldsmith told me, “and the problem
was that I had decided six months earlier that I couldn’t stand by the
opinion.”

A week after the leak of Yoo’s August 2002 memo, Goldsmith withdrew
the opinion. Goldsmith made the decision himself, in consultation with Philbin
and Deputy Attorney General James B. Comey, both of whom, Goldsmith says, agreed
it was the right thing to do. He then told Ashcroft, who was, Goldsmith writes, “unbelievably
magnanimous: it had happened on his watch, and he could have overruled me,
and he didn’t.” Goldsmith was concerned, however, that the
White House might overrule him. So he made a strategic decision: on the same
day that he withdrew the opinion, he submitted his resignation, effectively
forcing the administration to choose between accepting his decision and letting
him leave quietly, or rejecting it and turning his resignation into a big news
story. “If the story had come out that the U.S. government decided
to stick by the controversial opinions that led the head of the Office of Legal
Counsel to resign, that would have looked bad,” Goldsmith told
me. “The timing was designed to ensure that the decision stuck.”

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Again, according to Goldsmith, Addington was furious. During his brief time
in office, Goldsmith had withdrawn not only the two torture opinions but also
others. (He refused to discuss the other opinions with me.) In the end, he
says, he had withdrawn more opinions than any of his predecessors. Shortly
before he resigned, Goldsmith says, Addington confronted him in Gonzales’s
office, pulling out of his jacket pocket a 3-by-5 card that listed the withdrawn
opinions. “Since you’ve withdrawn so many legal opinions
that the president and others have been relying on,” Addington
said, according to Goldsmith, “we need you to ...
let us know which [of the remaining] ones you still stand by.” Goldsmith
recalls that Gonzales, in his own farewell chat with him, said, “I
guess those opinions really were as bad as you said.”

Looking back,
Goldsmith says, he criticizes but does not vilify Yoo, whom he believes wrote
and defended the opinions in good faith. Praising Yoo’s “knowledge,
intelligence and energy,” he writes in his book that “the
poor quality of a handful of very important opinions is probably attributable
to some combination of the fear that pervaded the executive branch, pressure
from the White House and Yoo’s unusually expansive and self-confident
conception of presidential power.”

I have known Yoo since we were in law school together as well, and I called
him for a response. “I think Jack and I had a good-faith disagreement,
but I think at some level this was elevating form over substance,” he
said. Yoo said that in writing the torture memo, he experienced no pressure
from the White House, which he described as “hands off.” Instead,
he said, “there was an urgency to decide so that valuable intelligence
could be acquired from Abu Zubaydah, before further attacks could occur.” Yoo
says it is his understanding that no policies or interrogation techniques changed
as a result of the withdrawal of the torture memo, noting that all policies
that were legal under the withdrawn opinions are also acknowledged as legal
under the opinion that eventually replaced the withdrawn ones. (That opinion
was issued in December 2004, six months after Goldsmith’s resignation,
and was signed by Daniel Levin, his acting successor as head of the Office
of Legal Counsel.)

Yoo also rejects the criticism that his reasoning was unnecessarily broad,
describing the criticism of his opinion as something that could have been made
only with the benefit of hindsight. “You can claim it’s
too broad after the policy has been decided on, but I didn’t have that
luxury in the spring of 2002,” he told me. “If you’re
providing the legal advice before they choose the policy, how could you know?”

Goldsmith puts the bulk of the responsibility for the excesses of the Office
of Legal Counsel on the White House. “I probably had a hundred
meetings with Gonzales, and there was only one time I was talking about a national-security
issue when Addington wasn’t there,” Goldsmith told me. “My
conflicts were all with Addington, who was a proxy for the vice president.
They were very, very stressful.”

During his tenure at the Office
of Legal Counsel, Goldsmith also clashed with Addington over the detention
and trial of suspected terrorists. In January 2004, the Supreme Court agreed
to review a lower-court decision approving the detention of Yaser Hamdi, an
American citizen then being held as an enemy combatant. A group of administration
lawyers including Goldsmith met with Gonzales and Addington in Gonzales’s
office to discuss the implications of the case. “Why
don’t we just go to Congress and get it to sign off on the whole detention
program?” Goldsmith recalls asking, reasoning that the Supreme
Court would be less likely to strike down a detention program in wartime if
Congress had explicitly supported it. According to Goldsmith, Addington shot
down the idea.

Not long before Goldsmith left, the Supreme Court approved in
June 2004, in the Hamdi case, the detention power itself but put some modest
restrictions on the administration’s ability to detain citizens without
trial. Afterward, Gonzales, Addington, Goldsmith and others, including the
deputy solicitor general, Paul Clement, met again, Goldsmith recalls, and he
and Clement again proposed going to Congress to put the administration’s
legal strategy on a more sound footing. Once again, Goldsmith told me, the
advice was ignored, and the White House continued to operate as if it assumed
it could avoid a strong rebuke from the Supreme Court.

That rebuke finally arrived, however, last year in the
Hamdan case, when the Supreme Court rejected the administration’s claim
that it could try suspected terrorists in military commissions created without
Congressional approval. In a further blow to the administration, the court
held that the legal protections of “common article 3” of
the Geneva Conventions, which contains minimal protections for detainees in
wartime, also applied in the war against Al Qaeda. Goldsmith says he believes
this ruling was “legally
erroneous” but “hugely consequential.” It
provided detainees at Guantánamo with more rights than the administration
had ever acknowledged, and it implied that the War Crimes Act might be used
to prosecute administration officials for their treatment of detainees.

In debates over the detention of suspected terrorists, Goldsmith says he
was struck by how Addington’s efforts to expand presidential power ultimately
weakened it. In September 2006, two months before the midterm elections, Bush
eventually did ask Congress to approve his military commissions, and Congress
promptly passed a law that gave him everything he asked for, authorizing many
aspects of the military commissions that the Supreme Court had struck down.
Although Bush had won the battle, Goldsmith sees the refusal to go to Congress
earlier as the cause of an unnecessary Supreme Court defeat. “I’m
not a civil libertarian, and what I did wasn’t driven by concerns about
civil liberties per se,” he told me. “It was a disagreement
about means, not ends, driven by a desire to make sure that the administration’s
counterterrorism policies had a firm legal foundation.”

In Goldsmith’s
estimation, the unnecessary unilateralism of the Bush administration reached
its apex in the controversy over wiretapping and secret surveillance. Goldsmith
says he did not originally intend to mention the surveillance controversy in
his book. But he says he was infuriated, soon before finishing his manuscript,
to be handed a subpoena in Cambridge by F.B.I. agents ordering him to testify
in a criminal investigation into the leaks that resulted in stories by James
Risen and Eric Lichtblau in The New York Times about the National Security
Agency’s warrentless wiretapping. After having a public conversation
with the F.B.I. in the middle of Harvard Square about aspects of the terrorist-surveillance
program, Goldsmith concluded he could discuss the same topics in his book.

Goldsmith emphasizes that he was not opposed to investigating the leak, which
he agreed with President Bush did “great harm to the nation.” In
addition, he shared the White House’s concern that the Foreign Intelligence
Surveillance Act might prevent wiretaps on international calls involving terrorists.
But Goldsmith deplored the way the White House tried to fix the problem, which
was highly contemptuous of Congress and the courts. “We’re
one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith
recalls Addington telling him in February 2004.

In his book, Goldsmith claims that Addington and other top officials treated
the Foreign Intelligence Surveillance Act the same way they handled other laws
they objected to: “They blew through them in secret based on flimsy
legal opinions that they guarded closely so no one could question the legal
basis for the operations,” he writes. Goldsmith’s first
experienced this extraordinary concealment, or “strict compartmentalization,” in
late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s
inspector general to see a copy of the Office of Legal Counsel’s legal
analysis supporting the secret surveillance program. “Before I
arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice
Department’s legal analysis of what N.S.A. was doing,” Goldsmith
writes.

Goldsmith also witnessed perhaps the most well-known confrontation over the
administration’s aggressive tactics: the scene at Ashcroft’s hospital
bed on March 10, 2004, when Gonzales and Andrew Card, the White House chief
of staff, visited the hospital to demand that the ailing Ashcroft approve,
over Goldsmith and Comey’s objections, a secret program that was about
to expire. (Goldsmith refuses to identify the program, but Robert S. Mueller
III, the F.B.I. director, has publicly indicated it was the terrorist surveillance
program.) As he recalled it to me, Goldsmith received a call in the evening
from his deputy, Philbin, telling him to go to the George Washington University
Hospital immediately, since Gonzales and Card were on the way there. Goldsmith
raced to the hospital, double-parked outside and walked into a dark room. Ashcroft
lay with a bright light shining on him and tubes and wires coming out of his
body.

Suddenly, Gonzales and Card came in the room and announced that they
were there in connection with the classified program. “Ashcroft, who looked
like he was near death, sort of puffed up his chest,” Goldsmith
recalls. “All of a sudden, energy and color came into his face,
and he said that he didn’t appreciate them coming to visit him under
those circumstances, that he had concerns about the matter they were asking
about and that, in any event, he wasn’t the attorney general at the moment;
Jim Comey was. He actually gave a two-minute speech, and I was sure at the
end of it he was going to die. It was the most amazing scene I’ve ever
witnessed.”

After a bit of silence, Goldsmith told me, Gonzales thanked
Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith
recalled, “Mrs. Ashcroft, who obviously couldn’t believe
what she saw happening to her sick husband, looked at Gonzales and Card as
they walked out of the room and stuck her tongue out at them. She had no idea
what we were discussing, but this sweet-looking woman sticking out her tongue
was the ultimate expression of disapproval. It captured the feeling in the
room perfectly.”

Goldsmith, Comey, Mueller and other Justice Department
officials were prepared to resign en masse if the White House implemented the
program over their objections. Two days later, Comey had a conversation at
the White House with Bush in which the president told him to do whatever was
necessary to make the program legal. And in the end, the entire controversy
was arguably unnecessary since the program was eventually approved by Congress
and brought, at least partially, under the supervision of the FISA Court, as
it could have been from the beginning. “I
was sure the government was going to melt down,” Goldsmith told
me. “No one anticipated they were going to reverse themselves.”

The
heroes of Goldsmith’s book — his historical models of
presidential leadership in wartime — are Presidents Lincoln and Franklin
D. Roosevelt. Both of them, as Arthur Schlesinger noted in his essay “War and
the Constitution,” “were lawyers who, while duly
respecting their profession, regarded law as secondary to political leadership.” In
Goldsmith’s view, an indifference to the political process has ultimately
made Bush a less effective wartime leader than his greatest predecessors. Surprisingly,
Bush, who is not a lawyer, allowed far more legalistic positions in the war
on terror to be adopted in his name, without bothering to try to persuade Congress
and the public that his positions were correct. “I don’t
know if President Bush understood how extreme some of the arguments were about
executive power that some people in his administration were making,” Goldsmith
told me. “It’s hard to know how he would know.”

The Bush administration’s
legalistic “go-it-alone approach,” Goldsmith
suggests, is the antithesis of Lincoln and Roosevelt’s willingness to
collaborate with Congress. Bush, he argues, ignored the truism that presidential
power is the power to persuade. “The Bush administration has operated
on an entirely different concept of power that relies on minimal deliberation,
unilateral action and legalistic defense,” Goldsmith concludes
in his book. “This approach largely eschews politics: the need
to explain, to justify, to convince, to get people on board, to compromise.”

Goldsmith
says he remains convinced of the seriousness of the terrorist threat and the
need to take aggressive action to combat it, but he believes, quoting his conservative
Harvard Law colleague Charles Fried, that the Bush administration “badly
overplayed a winning hand.” In retrospect, Goldsmith told me, Bush “could
have achieved all that he wanted to achieve, and put it on a firmer foundation,
if he had been willing to reach out to other institutions of government.” Instead,
Goldsmith said, he weakened the presidency he was so determined to strengthen. “I
don’t think any president in the near future can have the same attitude
toward executive power, because the other institutions of government won’t
allow it,” he said softly. “The Bush administration
has borrowed its power against future presidents.”

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author most recently of ‘‘The Supreme Court: The Personalities and Rivalries That Defined America.’’

A version of this article appears in print on , on Page 640 of the New York edition with the headline: Conscience of a Conservative. Today's Paper|Subscribe